On October 14, 2014, Justice Scalia dissented with Justices Thomas and Ginsburg from the denial of certiorari in Jones v. United States, No. 13-10026, where the defendants were convicted of individual crack sales, acquitted of conspiracy PWID, but then sentenced to very long terms of incarceration after “the sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them.”

After surveying Alleyne and Apprendi, Justice Scalia says: “It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.”  The only exception that Justice Scalia would apparently recognize is the fact of a prior conviction.

It’s a strange statement, but seems to break new ground.  In more basic terms, I am guardedly optimistic that, in Scalia’s view: “A sentence that is lengthened by judicial factfinding (other than the fact of a prior conviction) is substantively unreasonable unless the facts were found by a jury.”

If this view becomes the law, then it’s a significant change, and many lengthy federal sentences would become ripe for review, at least where the defendant raised substantive unreasonableness on direct appeal.  Perhaps my friend won’t be serving 105 years after all.